Guidelines for the Assessment of General Damages in Personal Injury Cases in Northern Ireland The Judicial Studies Board for Northern Ireland Guidelines for the Assessment of General Damages in Personal Injury Cases in Northern Ireland (Fourth edition) Published on 4 th March, 2013 Introduction by The Right Honourable Lord Justice Girvan
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Guidelines for the Assessment of General Damages in Personal Injury Cases in Northern Ireland
The Judicial Studies Board for Northern Ireland
Guidelines for the Assessment of General Damages in Personal Injury
Cases in Northern Ireland
(Fourth edition)
Published on 4th March, 2013
Introduction by
The Right Honourable Lord Justice Girvan
Guidelines for the Assessment of General Damages in Personal Injury Cases in Northern Ireland
ACKNOWLEDGEMENT
The Judicial Studies Board for Northern Ireland gratefully
acknowledges the work done by the Committee in producing
these guidelines. The members of the Committee were: The
Honourable Mr Justice Horner, His Honour Judge Smyth QC,
His Honour Judge Grant (Recorder of Londonderry), His
Honour Judge Devlin, District Judge Collins, Mr Dermot Fee
QC, Mr Gerald McAlinden QC, Mr Brian Stewart of O'Reilly
Stewart, Solicitors and Mr Gareth Jones of C&H Jefferson,
Solicitors, under the chairmanship of The Right Honourable
Lord Justice Girvan. The Honourable Mr Justice Gillen, Senior
Queen’s Bench Judge, kindly acted as a consultant to the
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CONTENTS
Guidelines Page
Contents 1-2
Introduction to the Fourth Edition by The Right
Honourable Lord Justice Girvan 3-4
Introduction to the First Edition by The Right
Honourable Lord Justice MacDermott 5-6
1. Injuries resulting in Death 7
2. Injuries involving Paralysis 8
3. Head Injuries 9
4. Psychiatric Damage 12
A. Psychiatric Damage Generally 12
B. Post-traumatic Stress Disorder 13
5. Injuries affecting the Senses 14
A. Injuries Affecting Sight 14
B. Deafness 14
C. Impairment of taste and smell 15
6. Injuries to Internal Organs 17
A. Chest Injuries 17
B. Lung Disease 18
C. Digestive System 18
D. Reproductive System 19
E. Kidney 20
F. Bowels 20
G. Bladder 21
H. Spleen 21
I. Hernia 21
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7. Orthopaedic Injuries 22
A. Neck Injuries 22
B. Back and other Upper Body Injuries 24
C. Injuries to Pelvis and Hips 25
D. Amputation of Arms 26
E. Other Arm Injuries 27
F. Shoulder Injuries 27
G. Injuries to the Elbow 28
H. Wrist Injuries 28
I. Hand Injuries 28
J. Work-related Upper Limb Disorders 30
K. Leg Injuries 32
L. Knee Injuries 33
M. Ankle Injuries 34
N. Achilles Tendon 34
O. Foot Injuries 35
P. Toe Injuries 36
8. Facial Injuries 37
A. Skeletal Injuries 37
B. Facial Disfigurement 38
9. Scarring to other Parts of the body 40
10. Damage to Hair 41
11. Dermatitis 42
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Introductory Foreword to the Fourth Edition of the Green Book
“Guidelines for the Assessment of General Damages in Personal Injury Cases” first appeared in 1996. Published under a green cover, the publication quickly became known as the Green Book. Since its inception it has proved to be an invaluable tool for practitioners and courts in the assessment of damages in personal injury cases coming before the courts. As Sir John MacDermott made clear in his Introduction to the First Edition in 1996 the figure suggested in the Guidelines are no more than guidelines, must always be treated as such and must be kept under regular review. The task of the Committee which I chaired in the early part of 2013 has been to subject the Guidelines as shown in the Third Edition to the periodic review called for by Sir John. This is necessary because some five years have passed since the last review which led to the publication of the Third Edition in March 2008. The current review is also timely because of the very recent increase in the jurisdiction of the County Court in personal injury cases. Sadly, the new edition does not appear in the Green Book format to which practitioners and courts have become accustomed. The Fourth Edition appears online on the Judicial Studies Board Website though it is likely that many users will print off their own copies of the new edition for ready access in court or consultation. I rather suspect that the virtual book will retain its verdant title. As in previous reviews we have made adjustments to the figures by reference to the Retail Price Index (“RPI”). In doing this we have borne in mind that in the Third Edition the figures took account of the fact that those Guidelines would be effective for a number of years. In the course of the present review we considered it appropriate to go back to the base figures in the Second Edition and we have considered the effect of the RPI indexation to update those figures. We have not factored forward any notional increase for the future. This means the figures which we have given are at current values. As each year goes by, courts in assessing damages should take into account the effect of RPI inflation over time when assessing the appropriate damages in individual future cases. The figures for damages are given in broad terms and with relatively broad ranges to take account of the infinite variety of factual situations. The assessing court can thus determine the appropriate damages at the correct figure taking account of relevant inflation in the period subsequent to the date of publication of these updated Guidelines.
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In his Introduction in March 2008 Lord Justice Higgins noted that the House of Lords in Johnston v NEI and Rothwell v Chemical Insulating [2007] UKHL 39 decided that symptomless pleural plaques do not constitute actionable damage and are therefore not compensatable. The Northern Ireland Assembly, following the Scottish example, have legislated by the Damages (Asbestos-related Conditions) Act (Northern Ireland) 2011 to render symptomless pleural plaques and pleural thickening claims once again actionable in Northern Ireland. Pending any judicial determination of the correct level of damages in relation to such claims consequent upon the passing of the 2011 Act the Committee concluded that it would be premature to purport to set out the appropriate levels of awards in relation to these conditions. Guidelines, whether they relate to the appropriate level of damages or the appropriate level of sentencing in relation to criminal offences, remain just that, no more and no less. The function of the courts in assessing damages requires a careful scrutiny of the evidence, the drawing of conclusions about the nature and extent of relevant injuries and the impact of those injuries on the life of the plaintiff. The function of the court must never be seen as a box ticking exercise. Rather it calls for an exercise of judgment in the light of all the relevant circumstances. The infinite variety of life throws up a huge array of factors and matters relevant to the assessment of fair damages in respect of individual cases. It is thus not surprising that even within individual categories of injuries there may be a wide range of appropriate awards dependent on the circumstances of the individual case. The assessment of damages remains an art and not an exact science. These Guidelines provide assistance to those called on to exercise their art. They do not provide the precise answer to any given case. The Committee was fortunate to have the assistance of Terence Dunlop of the Judicial Studies Board who proved an able and efficient Secretary. Wendy Murray and Amanda Climie were instrumental in marshalling the paperwork and providing drafts as well as carrying out research. I am grateful to all of them for the helpful contributions which they made to the work of the Committee. F.P. Girvan
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INTRODUCTION TO FIRST EDITION by The Right Honourable Lord Justice MacDermott
This Committee was set up by the Lord Chief Justice at the suggestion
of the Judicial Studies Board for Northern Ireland. In March 1992 the first
edition of the Guidelines for the Assessment of General Damages was published in
England and the Board felt that it would be helpful to Practitioners and others
concerned with the assessment of damages if a Northern Ireland edition were
produced.
Our initial approach to our task was to question the wisdom of such a
venture. The assessment of damages is not an exact science: it is not a
mechanical process achieved by recourse to an analysis of allegedly
comparable cases or reference to well known books such as Kemp and Kemp. A
fair assessment is achieved by the Judge applying his training, experience and
innate sense of fairness to the individual case which he is trying and which he
will approach both sensibly and with sensitivity. There is a real argument that
“guidelines” will become “norms” and that the existence of a book of this
nature will depersonalise the assessment of damages. On reflection, however,
we concluded for several reasons that there should be a Northern Ireland
Guidelines Book.
Firstly, the level of damages in Northern Ireland is significantly higher
than in England and Wales. As was pointed out by Lord Lowry in Simpson v
Harland & Wolff [1988] NI 432 this variation is in large measure due to the fact
that in Northern Ireland the assessment of damages was in the hands of juries
until 1987.
Secondly, Practitioners when valuing cases and Judges when assessing
damages have had regard to the 1987 level of damages adjusted to reflect
inflation.
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Thirdly, if there are no local guidelines there is a danger that the
existing English Guidelines will be accepted as relevant by default. This
would be both irrational and unjust.
That said, we would emphasise that this book must be used with
caution and discretion. It must not be considered as a “ready-reckoner” which
by reference will provide an instant valuation to every case. The suggested
valuations are guidelines and will best be used as a check upon a tentative
valuation reached after a careful consideration of how particular injuries affect
a particular individual.
A meaningful valuation of general damages depends upon many
variables such as age, sex, pre-accident health and so on. The guidelines in
this book are often given as a wide bracket so that these variable features may
be fitted in and they are also wide so that they may last for a number of years
without being rendered unreal by the erosion of inflation.
We have followed the headings adopted in the original book with some
minor variations. They are, however, somewhat rigid and do not reflect the
frequent situation where injuries are multiple and their sequelae varied and at
times overlapping.
Finally, we would repeat what we have already said: this book must be
used cautiously and sensibly. The figures which we suggest are no more than
guidelines and must always be treated as such and kept under regular review.
JOHN MACDERMOTT
25 October 1996
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1. INJURIES RESULTING IN DEATH
Fatal accident claims sometimes include an element for
pain, suffering and loss of amenity for the period between
injury and death. In some circumstances the awards may
be high, for example those relating to asbestos exposure
or misdiagnosis of cancer. Others follow extensive periods
of disability before death supervenes. In such cases
reference should be made to the awards for the underlying
injuries or condition, suitably adjusted to reflect the fact (if
it be the case) that the plaintiff knows that death is
approaching, and the period of suffering.
There are cases in which a serious injury is followed by
death relatively quickly. Factors which will inform the level
of general damages include
(a) the nature and extent of the injury
(b) the nature of the traumatic event causing the injury
(c) the degree and duration of pain and discomfort
(d) the plaintiff’s awareness of pain and discomfort
(e) the effect and effectiveness of medication and
medical treatment on the plaintiff and any side
effects
(f) the length of the period of survival
(g) the plaintiff’s awareness of his impending death
(h) loss of amenity.
There are many variables rendering it difficult to give
meaningful guidelines. Immediate unconsciousness after
the trauma causing the injury followed by death within a
matter of weeks where it is clear that the plaintiff has not
suffered may attract damages in the range of £10,000
whereas a trauma such as severe burns with lung damage
causing excruciating pain for a significant period would
attract a high award. There will be cases falling closer to
one side of the range than another. Each case will call for
a careful assessment by the court of all the circumstances
to arrive at the appropriate award.
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2. INJURIES INVOLVING PARALYSIS
(a) Quadriplegia £400,000 – £575,000
Considerations affecting the level of the award:
(i) Extent of residual movement
(ii) Pain
(iii) Effect on other senses
(iv) Depression
(v) Age and life expectancy.
(b) Paraplegia £320,000 – £470,000
Considerations affecting the level of the award:
(i) Pain
(ii) Depression
(iii) Age and life expectancy.
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3. HEAD INJURIES
(a) Very Severe Brain Damage £300,000 – £550,000
In the most severe cases the Plaintiff will be in a
vegetative state; there may be recovery of eye opening
and some return of sleep and waking rhythm and
postural reflex movements; no evidence of meaningful
response to environment. Unable to obey commands;
no language functions and need for 24-hour nursing
care.
Considerations affecting the level of the award:
(i) Insight – low insight or awareness will diminish
general damages.
(ii) Life expectancy
(iii) Extent of physical limitations.
(b) Moderately Severe Brain Damage £200,000 – £450,000
Severe disability. Conscious, but total dependency and
requiring constant care. Disabilities may be physical,
e.g. limb paralysis, or cognitive, with marked
impairment of intellect and personality.
Considerations affecting the level of the award:
(i) Insight - low insight or awareness will diminish
general damages.
(ii) Life expectancy
(iii) Extent of physical limitations
(c) Moderate Brain Damage
(i) Moderate to severe intellectual deficit, a personality
change, an effect on sight, speech and senses with
an epileptic risk. £200,000 – £375,000
(ii) Modest to moderate intellectual deficit, the ability to
work is greatly reduced if not lost and there is a risk
of epilepsy.
£110,000 – £225,000
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(iii) Concentration and memory are affected, the ability
to work is reduced and there may be a risk of
epilepsy. £38,000 – £140,000
(d) Minor Brain Damage £35,000 – £70,000
A good recovery will have been made. The Plaintiff
can participate in normal social life and return to work
but restoration of all normal functions is not implicit.
There may still be persistent defects such as poor
concentration and memory or disinhibition of mood
which may interfere with lifestyle, leisure activity and
future work prospects.
Considerations affecting the level of the award:
(i) Extent and severity of the initial injury
(ii) Extent of any continuing and possibly permanent
disability
(iii) Extent of any personality change.
(e) Head Injury £3,000 – £30,000
This category is a broad one. Where a head injury
involves other injuries or damage (e.g. loss of taste or
smell, damage to hair, injury to the jaw, scarring,
psychological or psychiatric damage and personality
change) the level of damages will take account of the
ranges applicable to these other injuries in addition to
damages for physical injury to the head (e.g. by reason
of a fractured skull). The damages will range from a
lower end of about £3,000 in cases where a full
recovery is established within a few weeks to cases of
more longstanding sequelae. In more serious cases
the damages may exceed the upper level of award
shown.
These are not cases of brain damage from which they
must be distinguished.
Considerations affecting the level of the award:
(i) Severity of initial injury
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(ii) Period of recovery from acute symptoms
(iii) Extent of continuing symptoms at trial
(iv) Headaches
(v) Cases where there are one or two discrete epileptic
episodes, or a temporary resurgence of epilepsy,
but there is no risk of further recurrence beyond that
applicable to the population at large.
(f) Established Epilepsy £70,000 – £150,000
This includes both Grand mal and Petit mal.
The factors which will affect the award will be:
(i) The existence of other associated behavioural
problems
(ii) Whether attacks are successfully controlled by
medication and the extent to which the appreciation
of the quality of life may be blunted by that
medication.
(g) Other Epileptic Conditions Up to £40,000
Cases where there are one or two discrete epileptic
episodes, or a temporary resurgence of epilepsy, but
there is no risk of further recurrence beyond that
applicable to the population at large. The level of the
award within the bracket will be affected by the extent
of any consequences of the attacks on, for example,
education, sporting activities, working and social life,
and their duration.
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4. PSYCHIATRIC DAMAGE
The factors to be taken into account in valuing claims
for psychiatric damage include the following:
(i) Ability to cope with life and particularly work
(ii) Effect on relationships with family etc.
(iii) Extent to which treatment would be successful
(iv) Future vulnerability
(v) Prognosis
(vi) The extent and / or nature of any associated
physical injuries
(vii) Whether medical help has been sought.
A. Psychiatric Damage Generally
(a) Severe Psychiatric Damage
In these cases the injured person will have marked
problems with respect to the factors (i) to (iv) above
and the prognosis will be very poor.
£70,000 – £175,000
(b) Moderately Severe Psychiatric Damage
In these cases there will be significant problems
associated with factors (i) to (iv) above but the
prognosis will be much more optimistic than in (a)
above.
£40,000 – £100,000
(c) Moderate Psychiatric Damage
While there may have been the sort of problems
associated with factors (i) to (iv) above there will have
been marked improvement by trial and the prognosis
will be good.
£10,000 – £40,000
(d) Minor Psychiatric Damage
The level of the award will take into consideration the
length of the period of disability and the extent to which
daily activities and sleep are affected.
Considerations as to the level of the award will include
the length of the period of disability and the extent to
which daily activities were affected.
To £10,500
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B. Post-traumatic Stress Disorder
An increasingly large number of cases deal with a
specific reactive psychiatric disorder in which
characteristic symptoms are displayed following a
psychologically distressing event outside the range of
human experience which would be markedly
distressing to almost everyone. Such symptoms would
affect the basic functions such as breathing, pulse rate
and bowel and / or bladder control. They would also
involve persistent re-living of the relevant event,
difficulty in controlling temper, in concentrating and in
sleeping, and exaggerated startled response.
There may be exceptional cases where consequences
are so severe they equate more with the type of
damage envisaged in para. A above.
(a) Severe
Such cases will involve permanent effects which
prevent the injured party from working at all or at least
from functioning at anything approaching the pre-
trauma level. All aspects of the life of the injured
person will be badly affected.
£50,000 – £100,000
(b) Moderately Severe
This category is distinct from (a) above because of the
better prognosis where some recovery with
professional help is anticipated. However, the effects
are still likely to cause significant disability for the
foreseeable future.
£35,000 – £70,000
(c) Moderate
In these cases the injured person will have largely
recovered and any continuing effects will not be grossly
disabling.
£10,000 – £40,000
(d) Minor
In these cases a virtually full recovery will have been
made within one to two years and only minor effects
will persist over any longer period.
£3,500 – £10,000
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5. INJURIES AFFECTING THE SENSES
Loss of or damage to senses can be restricted to one
particular sense, e.g. loss of one eye or total blindness
or loss of the sense of smell. However, very often
damage to senses can be caused by other injuries. In
such cases damages are likely to be viewed as
“multiple injuries” awards.
A. Injuries Affecting Sight
(a) Total Blindness and Deafness £350,000 – £500,000
(b) Total Blindness £225,000 – £400,000
(c) Total Loss of One Eye £70,000 – £110,000
(d) Loss of Sight in One Eye with Reduced Vision in
the Remaining Eye
(i) Where there is serious risk of further deterioration in
the remaining eye, going beyond the normal risk of
sympathetic ophthalmia.
£120,000 – £210,000
(ii) Where there is reduced vision in the remaining eye
and other problems are experienced e.g. double
vision.
£80,000 – £150,000
(e) Complete Loss of Sight in One Eye £60,000 – £105,000
(f) Cases of serious but incomplete loss of vision in one
eye without significant risk of loss of or reduction in
vision in the remaining eye, or where there is constant
double vision.
£35,000 – £70,000
(g) Minor but permanent impairment of vision in one eye
including cases where there is some double vision
which may not be constant.
£14,000 – £50,000
(h) Minor Eye Injuries Up to £15,000
B. DEAFNESS
The word “deafness” in this context is used to cover
both total and partial hearing loss. However, in
assessing awards for hearing loss regard must be had
to the following:
(i) Whether the injury complained of is:
(a) A hearing impairment
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(b) A disability
(c) A handicap.
(ii) Whether the injury is one that has an immediate
effect of causing one or more of the disabilities
above or whether the same occurred over a period
of time, e.g. in noise exposure cases.
(iii) Whether the injury / disability is one that the
Plaintiff has suffered at an early age with the result
that the same has had an effect upon his speech or
if it is one that he has suffered in later life.
(a) Total Deafness and Loss of Speech £240,000 – £425,000
(b) Total Deafness £160,000 – £250,000
(c) Total Loss of Hearing in One Ear £35,000 – £60,000
(d) Partial Hearing Loss / Tinnitus
(i) Severe tinnitus
The higher end of the range will be appropriate
where there is a high level of tinnitus with hearing
loss and psychological sequelae. In very severe
cases the level of damages is likely to exceed
£70,000 though care should be taken not to
overcompensate the plaintiff if damages are also
awarded for psychiatric injury brought on by the
tinnitus.
£35,000 – £70,000
(ii) Moderate tinnitus and hearing loss £17,500 – £35,000
(iii) Mild or occasional tinnitus with some hearing loss To £17,500
C. Impairment of Taste and Smell
(a) Total Loss of Taste and Smell £35,000 – £60,000
(b) Loss of Smell and Loss of Taste
The higher end of the range will be appropriate in cases
of total loss of smell with a significant loss of taste.
Total loss of smell nearly always leads to some loss of
taste. The damages in this category will reduce the
greater the plaintiff’s residual sense of smell and taste.
£28,000 – £58,000
(c) Loss of Smell
A plaintiff who suffers from a loss of sense of smell will
normally suffer a loss of a sense of taste. See above. In
a case where the plaintiff falls to compensated for a
£28,000 – £50,000
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loss of a sense of smell on its own the upper range
figure would be appropriate in a case of a total loss of
the sense of smell. The damages will diminish the
greater the residual sense of smell.
(d) Loss of Taste
In a case where the plaintiff falls to compensated for a
loss of a sense of taste on its own the upper range
figure would be appropriate in a case of a total loss of
the sense of taste. The damages will diminish the
greater the residual sense of taste.
£20,000 – £35,000
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6. INJURIES TO INTERNAL ORGANS
A. Chest Injuries
This is an especially difficult area because the vast
majority of cases relate to industrial disease (dealt with
in para. B below) as distinct from traumatic injury and
the level of the appropriate award for lung disease
necessarily reflects the prognosis for the future and / or
the risks of development of secondary sequelae (such
as mesothelioma). When assessing claims it must be
borne in mind that particular injuries may not fit neatly
within the following categories and the appropriate
damages may lie somewhere between the ranges.
(a) Most serious cases
These will include cases involving the removal of one
lung with considerable pain and discomfort.
£150,000 – £200,000
(b) Traumatic injuries to the chest involving the lung(s)
and/or heart causing permanent damage and impairment
of function, physical injury and reduction of life
expectancy.
£90,000 – £150,000
(c) Damage to the chest and lung(s) causing continuing
disability
£20,000 – £90,000
(d) A relatively simple injury such as a simple penetrating
wound causing some permanent damage to tissue but
with no significant long term effect on lung function
£10,000 – £17,500
(e) Injuries leading to collapsed lung from which a full
recovery is made
£7,000 – £14,000
(f) Smoke inhalation which is not serious enough to
interfere permanently with lung function.
Relevant factors to be considered will include:
(a) the degree, nature and duration of interference with
lung function
(b) the nature and duration of the residual
symptomology
(c) the degree, nature and duration of breathing
difficulty
(d) the degree, nature and duration of physical
discomfort
(e) the impact on quality of life
(f) the long term prognosis.
£5,000 – £20,000
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The lower end of the range reflects some minor residual
damage of short duration. The upper end reflects more
long term residual though not serious sequelae. Where the
sequelae are more serious and/or more long term the
damages will fall to be assessed by reference to the
figures in (c) above.
(g) Fractures of ribs or soft tissue injuries causing serious
pain and disability over a period. The award will depend
(inter alia) on the number of ribs involved, the degree and
duration of the pain and discomfort and the prognosis.
Long term or permanent pain will attract an award in
excess of the upper figure in the range.
Up to £15,000
B. Lung Disease
(a) Pleural thickening with functional impairment. This is a
final award to include the risk of subsequent
developments adversely affecting the respiratory
condition such as further pleural thickening, asbestosis,
mesothelioma and lung cancer.
£21,000 – £42,000
(b) Minimal to mild asbestosis with at most slight
impairment of function and quality of life. Award on a
full and final basis to include future risks of deterioration
and asbestosis, mesothelioma and lung cancer.
£28,000 – £50,000
(c) Moderate to severe asbestosis with considerable
impairment of function and quality of life. Award on a
full and final basis to include all future risks of
deterioration, mesothelioma and lung cancer.
£40,000 – £85,000
(d) Lung cancer or mesothelioma where death within a few
years of trial is inevitable.
£70,000 – £130,000
(e) Occupational asthma with impairment of function and
quality of life. £28,000 – £58,000
(f) Aggravation of a pre-existing, constitutional Asthma. £14,000 – £42,000
(g) Bronchitis or Chronic Obstructive Airways Disease. £7,000 – £28,000
(h) Mild respiratory conditions (usually resulting from unfit
housing or similar exposure, particularly in cases of
young children) treated by a general practitioner and
resolving within a few months.
Up to £7,500
C. Digestive System
It is to be noted that the risk of associated damage to
the reproductive organs is frequently encountered in
cases of this nature and requires separate
consideration.
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(a) Serious damage with continuing pain or discomfort £35,000 – £80,000